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2016 DIGILAW 834 (HP)

Lal Chand v. State of H. P.

2016-05-18

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J (Oral). This petition has been filed praying for the following reliefs:- “(ii) That appropriate orders and directions may be issued in favour of the petitioner and against the respondent requiring them to complete the acquisition proceedings at the earliest, so that the petitioner is not deprived of his aforesaid property without adopting due process of law and initiate and finalize the necessary process in this regards, so that due process of law is adopted and justice may be done to the petitioner. (iii) That in case the respondents are not ready and willing to initiate and finalize acquisition proceedings and pay the amount of compensation, in that event, necessary orders may kindly be passed, so that the land belonging to the petitioner and other recorded co-owners whatsoever is found to have been occupied by the respondents is restored and physical possession thereof is handed over to them” 2. The case of the petitioner is that he is co-owner of land comprised in Mohal Khuni-Panoli, Tehsil Nankhari, District Shimla, which has been used for the construction of road known as “Rai-Bahali-Khuni”, at village Khuni-Panoli during the year 1988 by the State Government. At that time, when the said land was being utilized by the Government for the purpose of construction of the road, he along with other land owners had objected that they shall not allow construction of the road, till they were duly compensated for use of their land as per law. They were assured by the respondent-State that the said land shall be duly acquired under the Acquisition Act. Thereafter, as is evident from the pleadings, Notification under Section 4 of the Land Acquisition Act was issued which was followed by issuance of Notification under Section 9 of the Land Acquisition Act, whereby the petitioner was ordered to be summoned for 13.6.2001. However, these acquisition proceedings were not completed and the same proceedings lapsed on account of the negligence on the part of the authorities concerned. 3. Subsequently, the State again issued Notification under Section 4 of the Land Acquisition Act on 26.10.2004. However, even the said Notification lapsed and these proceedings were not taken to their logical end. However, these acquisition proceedings were not completed and the same proceedings lapsed on account of the negligence on the part of the authorities concerned. 3. Subsequently, the State again issued Notification under Section 4 of the Land Acquisition Act on 26.10.2004. However, even the said Notification lapsed and these proceedings were not taken to their logical end. Petitioner and other land owners again requested the Government to acquire their land which had been utilized for the purpose of construction of road in accordance with law and they were assured that the Government shall take necessary steps in this regard. 4. However, when the said assurances of the Government did not materialize, the petitioner was forced to file the present writ petition by way of which the petitioner prayed for issuance of direction to the authorities concerned to complete the acquisition proceedings which had been initiated to acquire his land which has been utilized by Government without compensating him in accordance with law as far back as in the year 2001. 5. Reply to the petition has been filed by the State, wherein the factum of the land of the petitioner having been utilized by the Government for the purpose of construction of the road has not been disputed. It again remains a fact that though the petition itself was filed in the year 2009, till date the process for acquiring the said land in accordance with law has not been completed by the State. In these circumstances, when the case was listed on 22.4.2016, this Court directed respondent No.1 to file supplementary affidavit explaining therein as to what steps had been taken by the State, in furtherance of the averments made in para 1 of the preliminary submissions as well as in para 9 of the reply on merit to the petition, wherein the stand of the State was that proceedings for land acquisition for the land falling in the alignment of the road concerned shall be initiated afresh by the Government in view of the undertaking given by respondent No. 1 on 20.7.2009 in CWP No. 2058 of 2009, titled Kahar Singh Vs. State of H.P. It is relevant to refer to the reply which was filed by the respondents to the writ petition. State of H.P. It is relevant to refer to the reply which was filed by the respondents to the writ petition. It was stated in preliminary submission as under:- “x x x x It is admitted that notification under Section-4 dated 6.10.2004 has also been issued earlier by the respondent department. As per this notification land situated over Kh. No. 916 measuring 0-13- 30 Hect. And Kh. No. 911 measuring 0-30-02 Hect. Has been proposed to be acquired by the respondent department. However, notification u/s 6 & 7 could not be issued within stipulated period of one year, as such the said notification automatically lapsed. Therefore, proceedings for land acquisition for the land falling on the alignment of said road shall be initiated a fresh by the respondent department in view of undertaking given by the respondent No.1 on 20.07.2009 in CWP No. 2058/09 titled Kahar Singh Vs. State of H.P. before this Hon’ble Court. The respondent further undertake that the said proceedings shall also be completed well within the statutory period as prescribed under Land Acquisition Act. Hence, in view of this position the present writ petition deserved to be disposed of in the interest of justice.” 6. In compliance to the said order, an affidavit has been filed by Addl. Chief Secretary (Public Works) to the Government of Himachal Pradesh dated 6.5.2016, relevant contents of para 3 of which are quoted herein below:- “3. That in compliance to above directions, the record available in the office of deponent in works branch has been verified and found that based upon the undertaking made in Preliminary Submission Para-1 and reply on merit para-9, the draft acquisition papers under Section 4 for the suit land/road in question was also moved by Superintending Engineer, 11th Circle Rampur on 25.02.2014 to the office of deponent/respondent No.1 and after examining the same at the govt. level in consultation with advisory deptt. Was conveyed to SE, 11th Circle Rampur vide letter No. PBW(F)(5)43/2009 dated 12.03.2014 for acquisition of land u/s 4 of old Act including suit land situated over Kh. No. 911,916 & 302 Mauja Khuni-Panoli, Sub- Tehsil Nankhari, Distt. level in consultation with advisory deptt. Was conveyed to SE, 11th Circle Rampur vide letter No. PBW(F)(5)43/2009 dated 12.03.2014 for acquisition of land u/s 4 of old Act including suit land situated over Kh. No. 911,916 & 302 Mauja Khuni-Panoli, Sub- Tehsil Nankhari, Distt. Shimla as under:- “In reference to your office letter No. SE-11th Circle- Work- RMP-Rep/2013-14-23426-27 dated 25.02.2014, I have been directed to say that the matter has been reexamined and it has been found that the proposal of 114 kita has been sent for notification under Section-4 in respect of Village Khunni Panoli, Sub-Tehsil Nankhari, District Shimla for the construction of Rai Bahali Khunni Panoli road in which as per the direction of Hon’ble high Court in CWP No. 1316/2008 titled as Sh. Mohan Lal V/s State of HP, the notification of only 3 Khasra Nos. under Section 4 has been issued whereas the notification of 111 kita is to be issued for which the petition No. 4828/2012-Sh. Bahadur Singh, NO. 3750/2012-Sh. Agya Nand, 2540/2009-Lal Chand and petition No. 8501/2013-Sh. Ravinder have been filed by the land owners in Hon’ble High Court and the decision of Hon’ble High Court is still awaited due to which the initiation of land acquisition proceedings by the department does not seem to be appropriate. In addition to this, it is also intimated that all types of such cases will be dealt according to new Land Acquisition Act, 2013 which has been implemented w.e.f. January, 2014 and further action will be taken as per the direction of Hon’ble High Court. You are therefore, requested that the matter may be sent to this office after the decision of Hon’ble High Court as per the new Land Acquisition Act, 2013 so that further action could be taken.” Copy of this letter is annexed as Annexure R-1 and its English translated copy as Annexure R-1/T.” 7. A perusal of the said affidavit demonstrates that as per respondent No.1 though the State had again initiated steps to acquire the land of the present petitioner again in the year 2014, however, the said process was also not taken to its logical end. As per respondent No.1, draft acquisition papers under Section 4 vis-a-vis the land, subject matter of the present petition were moved by the authority concerned on 25.2.2014. As per respondent No.1, draft acquisition papers under Section 4 vis-a-vis the land, subject matter of the present petition were moved by the authority concerned on 25.2.2014. However, the process has not been taken to its logical conclusion on account of pendency of the writ petition filed by the land owners and the authorities were waiting for the outcome of the said proceedings. 8. In my considered view this attitude of the official(s)/officer(s) has to be deplored. Here is a case, where as per the petitioner, his land was utilized by the Government for the purpose of construction of a road as far back as in the year 1988 which fact is not disputed by the State. Even according to the respondent, the first Notification was issued under Section 4 for the purpose of acquiring the said land as far back as in the year 2001 and there is no cogent explanation by the State as to why the Notification issued in the year 2001 and subsequently again in the year 2004 were not taken to their logical conclusion. 9. Be that as it may, the fact remains that the respondent-State again initiated process to acquire the said land in the year 2014. Now as per the latest affidavit filed by the respondent-State these proceedings have not been taken to its logical conclusion on account of pendency of the cases filed by the land owners in this Court. 10. Had it been a case that certain land owners were objecting to the acquisition of the land, then it would have been a different matter. Here is a classic situation where a land owner has approached this Court that he should not be deprived of his property except by following due process of law which includes payment of due compensation, in case of utilization of land of a person and the respondent authority rather than expediting the process initiated by them for acquiring the said land is sitting over the matter on the excuse that they will first wait for the outcome of the petition which had been filed by the aggrieved land owners in this Court praying for direction to acquire the land. 11. 11. Had the respondent been prudent and vigil, then in my considered view the filing of the petition as far back as in the year 2009 should have acted as a catalyst calling upon the concerned authorities to complete the process of acquisition at the earliest, so that due and adequate compensation could have been paid to the land owners and the State exchequer could have been saved from extra monetary burden which now will have to be paid to the land owner on account of the delay caused in the acquisition of land. 12. Right to property is a Constitutional right guaranteed under Article 300(A) of the Constitution of India according to which, no person shall be deprived of his property save by authority of law. The manner in which the State has conducted itself in this case was unwarranted. It was the statutory obligation of the State to have had acquired the land of the petitioner in accordance with law at the earliest. In my considered view, the Government cannot deprive a person of the use of his land without acquiring the said land in accordance with law. 13. Therefore, keeping in view the facts and circumstances of the present case and the stand of the State, interest of justice shall be served by directing the respondent- State to complete the proceedings for acquiring the land of the petitioner and also pay due and adequate compensation to the petitioner as per law within a period of six months from today by initiating/completing the acquisition proceedings, as are required for acquiring the said land in accordance with law. 14. It is evident from the records that in the present case certain official(s)/officer(s) are guilty of serious omission on their part which has not only deprived the petitioner of due and adequate compensation but has also resulted in burdening the state exchequer with huge financial burden which was easily avoidable. Therefore, respondent No.1 is directed to hold an inquiry in this regard as to who are the official(s)/officer(s) responsible for delay in the acquisition of the land of the petitioner and respondent No.1 is further directed to take appropriate action against them in accordance with law within a period of six months from today and intimate this Court of the action so taken and the case is ordered to be listed for this purpose only on 1st December, 2016. 15. 15. Accordingly, the writ petition is allowed and respondents are directed to complete the proceedings for acquiring the land of the petitioner and also pay due and adequate compensation to him within a period of six months from today by initiating/completing the acquisition proceedings in this regard in accordance with law. This Court hopes and trusts that keeping in view the peculiar facts and circumstances of the case, the authorities will act promptly so as to save the state exchequer from any further monetary burden. The petitioner is also held entitled for cost assessed at Rs.25,000/- which amount shall be recovered from the erring official(s)/officer(s) by respondent No.1. 16. Pending miscellaneous application(s), if any, also stand disposed of.